A QUESTION OF ETHICAL BEHAVIOR AT TRIAL

Have you thought about the ethical question of how far an advocate should go in representing their client? It’s not a bright line, but here are some thoughts.

Most of us were introduced to Lord Brougham’s statement during his representation of the queen of England in Queen Caroline’s Case. Brougham said:

“An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all the means and expedients, and all the hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in the confusion.”

The balance between the duties imposed by professional codes and the inherent duty of zealous representation can be difficult to maintain. Some examples of clearly inappropriate conduct are easy such as the conduct of Joe Jamail during a deposition made famous on You-Tube when he invited the witness to settle a dispute with fists or the conduct of New Jersey lawyer McAlvey reported in Re McAlvey 354 A. 2d 289 (1976):

“He sprang from his chair screaming, grabbed opposing counsel by the throat and began to choke him. The judge and law clerk tried to separate the two men who were now locked in combat, and at one point all four persons – the judge, his law clerk and the two attorneys – were rolling on the floor. The judge suffered minor injuries before the two combatants were separated.”

In Washington we have Washington State Physicians Ins & Ass’n v Fison’s Corp 122 Wn 2nd 299 (1993) which provides a framework of general principles in civil litigation. The case is unique to our law firm. Before our partnership was formed, Jim Holman and I represented the child who had been injured by the medication sold by Fison’s and my now partner Joel Cunningham represented the doctor who had prescribed it. Fison’s, represented by Bogle & Gates lawyers concealed information on discovery which, when it surfaced, resulted in a record settlement for the child. Joel went on with litigation on behalf of the physician and his carrier which was precedent setting in allowing a recovery for involving the physician in litigation. The case importance for trial lawyers is the general principles of conduct it established.

“Vigorous advocacy is not contingent on lawyers being free to pursue litigation tactics that they cannot justify as legitimate. The lawyer’s duty to place his client’s interests ahead of all others presupposes that the lawyer will live with the rules that govern the system. Unlike the polemicists haranguing the public from hi soapbox in the park, the lawyer enjoys the privilege of a professional license that entitles him to entry into the justice system to represent his client, and in doing so, to pursue his profession and earn his living. He is subject to the correlative obligation to comply with the rules and to conduct himself in a manner consistent with the proper functioning of that system.”

In 1998 then State Attorney General Christine Gregoire apologized for the failure of the lawyer representing the State in a personal injury suit against the OK Boys Ranch to turn over docments which had been concealed and withheld. The state had been sanctioned by a fine of $417,500.00 for their concealment.

The 5th U.S. Circuit Court of Appeals sanctioned $22,500 a Texas attorney who called the CEO of a corporation a “washed up has been@”and the U.S. Attorney “a week pussy-footing deadhead.” The court refused to accept the attorney’s defense that what he had said was true.

So, on the one hand, we are obligated to put our client’s interests first and to represent them with all of the courage, skill and determination at our disposal. But, on the other hand, we are obligated to do that within the rules established for lawyer conduct. Anyway, it’s worth thinking about.